DNA Transcription

DNA Transcription & Protein Assembly

                                            

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DNA Unzipped

Fives Order Post-Conviction DNA Testing Under Innocence Protection Act, Address Burdens and Standards of Review

In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600. Minutes later, police found the shirt, hat, and glasses discarded near the bank. Fasano was later charged and convicted of the robbery. The trial evidence consisted of, among other things, the testimony of four eyewitnesses identifying Fasano as the robber, and Fasano's fingerprints on the demand note.

After the Fifth Circuit affirmed Fasano's conviction over a sufficiency challenge, he moved the district court to order DNA testing of the shirt, hat, and sunglasses under the Innocence Protection Act of 2004 (the relevant portion of which is found in 18 U.S.C. § 3600). The district court denied the motion. Fasano appealed.

Only two of the ten requirements for testing were contested: 1) the chain-of-custody requirements of § 3600(a)(4), and 2) the requirement that Fasano "establish that DNA testing would produce a 'reasonable probability' that he did not commit the robbery, as required by § 3600(a)(8)." The court of appeals reviwed the district court's construction of those two requirements de novo, and the factual findings for clear error.

The chain-of-custody requirement of subsection (a)(4) actually has two components: the evidence must 1) be in the Government's possession and subject to a chain of custody, and 2) "retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing." As to the first component, the court declined to

read the statute to impose a more exacting standard for a showing of the chain of custody in a proceeding under the Innocence Act than would be demanded in a trial itself [under FRE 901]. Indeed there is argument with some purchase, that the trial standard is itself too exacting for an inquiry into whether tests should be ordered. This is because much of the uncertainty inherent in this predictive exercise can be dispelled only by the tests a petitioner is seeking. Looking through the text and structure of the statute, we see the question posed by (a)(4) in such proceedings to be whether testing offers a reasonable possibility of securing sound DNA results from material for which the usual trial demands for chain of custody can be met. This may or may not in a given case prove to make precisely the same demand for authentication as that of admissibility at trial. And of course there may be overlap in the two demands of (a)(4), when for example a break in the chain of custody presents an insurmountable risk of spoilation—alteration material to DNA testing.

The court then concluded that the record did not support a finding of a break in the chain of custody. The local police retrieved the clothing minutes after the robbery, and turned it over to the FBI within a few days. From that point on, "there is no evidence that the items ever left the custody of the FBI or federal prosecutors." And that had important implications for Fasano's burden on this point:

After trial and before sentencing defense counsel obtained permission to reenact the robbery with use of the physical evidence including the shirt, hard hat and glasses but the items could not be located. The district court refused to grant a motion for new trial resting on this inability of the government to locate this evidence. Some time later the government found a paper bag with all the physical evidence in a closet next to the office of the government prosecutor in the case, who had in the meanwhile retired from service. Government had this evidence in its possession within hours of the robbery and it remained there. That it lay quiet in a paper bag in a court house closet may suggest an unwarranted casualness but that it was unseen, forgotten, and untouched is of no moment here. At least there is no evidence one way or the other whether this is so and we cannot place upon the defendant the burden of proving its history while it is held in government custody. To do so would create an entrance gate so difficult to enter as to frustrate the core objective of the statute.

As to the second component of (a)(4)—let's call it the adequate preservation requirement—the district court found no indication that the clothing had been protected from contamination, and concluded that "every government agent who handled the DNA be identified to assure that they 'would provide DNA samples in order to isolate them as potential sources of DNA contamination.'" The court of appeals acknowledged the multiple-handlers problem as a relevant concern, but pointed to expert testimony that "'mixtures [of DNA] have made interpretation impossible in only a narrow set of cases.'" "Any implicit contrary finding by the district court is clearly erroneous."

The court of appeals then turned to the requirement of subsection (a)(8) that the evidence produced by testing "support the theory of defense" and "raise a reasonable probability that that the applicant did not commit the offense." At trial, Fasano had "attacked the reliability of the eyewitness testimony and pointed the finger at" some guy who had been staying with Fasano's brother in Fasano's old room. Fasano also argued that although his "finger prints were on the demand note, the paper on which the demand note was written came from his old room."

The question here is whether testing may produce new material evidence that would raise a reasonable probability that the applicant did not commit the offense. The district court thought not, based on the fingerprints on the demand note and the eyewitness testimony. There is no question but that the conviction is well supported by evidence as we concluded in affirming Fasano’s conviction. If however testing does not find Fasano’s DNA on the clothing and glasses but finds the DNA of Hughes the strong case evaporates; here the strength of the evidence by no means makes fanciful a conclusion that there is a reasonable probability that Fasano was not the robber. That is, unless we are to refuse to accept the weakness of eyewitness testimony, a reality that DNA testing has forced upon the legal community. There are myriad possibilities of outcomes from testing. We need not puzzle over their range. Nor do we now address the power of the results of testing. These are fact specific cases and Fasano has brought himself within the reach of the Innocence Protection Act and the tests must be ordered.

There were giants on the earth in those days ...

... and also afterward, when the sons of God came in to the daughters of men, and they bore children to them. Those were the mighty men who were of old, men of renown.

-Genesis 6:4

The earliest humans (homo sapiens to be exact) would have lived contemporaneous with at least one other creature that looked remarkably like us.  We now refer to them as Neanderthals and there is a great deal of debate on the nature of our relationship with them.  Some believe we have treated them rather poorly and subdued them into extinction. Others say we simply outwitted them with superior intelligence and tools. While others believe we have mated with them and produced sterile hybrids. Still others believe that they were our ancestors.

Gerald Schroeder is a physicist and an Orthodox Jew who had written several books arguing that science and the Bible are not at odds concerning the origin of humanity, life, and the universe. In the Science of God, for example, he presents a compelling argument that the events following the Big Bang and those of the first six days of Genesis 1 are, in fact, identical realities described in vastly different terms.  Dr. Schroeder also argues that the Neanderthal, or the children of Neanderthal/homo sapien unions, are the 'giants' mentioned in Genesis 6:4.  The word that the original Hebrew Bible uses is actually 'Nephilim,' which loosely, and somewhat inaccurately, translates to 'giants.'

Svante Paabo is the director of the department of evolutionary genetics at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany. Researchers from his lab recently discovered that modern Europeans and Asians share between 1 and 4 per cent of their DNA with Neanderthals – but Africans don’t. This tell us that the Neanderthal have indeed 'come into' us, but any interbreeding between us and them happened after modern humans had left Africa, but before they spread across Asia and Europe

Humans first encountered Neanderthals in the Middle East, shortly before the second great migration out of Africa.  The Great Lakes region of East Africa is part of a geological formation know as the Great Rift Valley. Just north of Lake Turkana, one the northernmost lakes, is the Ethiopian highlands, and here the Great Rift Valley diverts eastward slightly into the Red Sea and from there into the Jordan River valley in Palestine. This is likely the path that humans took on their way out of Africa.

They met the Neanderthal  perhaps as early as 80,000 years ago. From 80,000 years ago until about 30,000 years ago, humans and Neanderthals lived side by side. There are caves in the Mt. Camel region of Israel that show evidence of human and Neanderthal intermingling.  A few Neanderthals may have infiltrated a group of humans, and started interbreeding, rather than a mass mixing of the two species.  We don’t know why they kept themselves mostly separate, but perhaps there were significant cultural differences.

 A team of researchers led by Svante Paabo previously made news in 1997 by collecting and analyzed the mitochondrial DNA of Neanderthals, and, at first glance, the data supported the notion that there was no interbreeding between humans and Neanderthals.

You may now be asking, doesn't this finding contradict the recent mitochondrial Eve finding that all humans are descendant from a small group of humans that existed 200,000 years in East Africa?  The answer would be, not really.  One also may be tempted to argue that since people of European descent have 'caveman' genes, they are therefore more inferior to the more purely homo sapien Africans (and given all the solipsist arguments that Europeans tried making about the inferiority of Africans, perhaps a little chagrin is deserved).  However, the amount of Neanderthal DNA in Europeans and some Asians appears to be quite small and probably does not have much of a functional effect, but stay tuned.  Perhaps there will more to this story. People of Europeans descent, however, need not be too distraught because Neanderthal turn out not be as intellectually challenged as they are often stereotyped to be.

Fossilized bones of Neanderthals were first discovered in 1856, in the valley of the Neander River in western Germany (Neander Valley is Neanderthal in German). Their skulls were distinctly less human than our own.  They had pronounced eyebrow ridges, large teeth, protruding jaws, and receding foreheads and chins. Neanderthals lived mostly in Europe and colder parts of East Asia, the southernmost boundary being the area around Palestine. They lived during glacial times and hunted mammoth, the woolly rhinoceros, and the giant cave bear.

They were the first animals to bury their dead, thus preserving them from scavengers.  This tends to show that they valued life, felt affection, and cared for individuals.  Sometimes the dead were old and crippled and could only have lived as long as they did with the loving help of others in the group.

What's more, food and flowers were often buried with the corpse, and this seems to indicate that Neanderthals felt life continued on an individual basis after death.  If they felt that there was life after death, then this might indicate that first stirrings of what we can call religion (or science)--a feeling that there is more to the Universe than is apparent to the senses.